Homosexuality is officially legal in Botswana. In a landmark ruling, the court declared section 164 of the penal code which criminalized same-sex relations unconstitutional, discriminatory, and against the public interest.
Under section 164 of Botswana’s Penal Code, “carnal knowledge of any person against the order of nature,” was an offense that carried a maximum sentence of seven years imprisonment. Section 167 made “acts of gross indecency” whether in public or private, a punishable offense, with up to two years in prison.
“A democratic society is one that embraces tolerance, diversity, and open-mindedness. Societal inclusion is central to ending poverty and fostering shared prosperity,” said Justice Michael Leburu terming it as a detriment to LGBTQ people.
The parked court burst into joy upon the ruling, as some noting that its freedom, at last, restoration of dignity to the LGBT community. The ruling comes just a month after Kenya High Court declines to decriminalize gay sex
A coordinator of Legabibo , a prominent LGBTQ rights group in Botswana, said that the verdict would have a tangible impact on LGBTQ individuals’ daily life, saying that it would help with access to health and legal services.
“Before we were struggling. People have been hiding. This judgment can make a massive change in our lives. This is what excites me the most. The judgment means so much. The court has upheld our dignity, our privacy, and our liberty. It means freedom,” she said.
While the ruling is a welcome development, there is still lots of work to sanitize the ruling in a region where tradition and culture are limiting.
“The ruling sets a powerful precedent on the continent by recognizing that the criminalization of same-sex conduct violates privacy rights and is blatantly discriminatory. The High Court is right in declaring that sodomy laws belong in a museum or the archives, not in modern life,” added a senior researcher for Human Rights Watch.
The historic ruling is a win for LGBTQ activists and supporters in a country and region where homosexuality remains largely taboo. Out of 54 African countries, at least 31 of them have enacted laws making it illegal to have gay sex, according to the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) with some countries upholding death penalty is a possible punishment.
